When a California resident dies without a Will, he/she has died “intestate”.
This is a legal term meaning the person died without documenting his/her wishes for distribution of his/her estate.

When this happens, California law decides who inherits the decedent’s assets. Keep in mind, this excludes assets held 1) by a Trust, 2) in accounts or policies that designate beneficiaries, and 3) jointly with someone else.

The definition of “intestacy” in California?

As stated above, “intestacy” is a legal way of saying someone died without a Will. 

In this case, California’s intestate inheritance laws (California Probate Code 6401 and 6402) dictate who inherits the decedent’s assets.  Again, this excludes assets held by a Trust, in accounts with beneficiaries, and/or jointly owned accounts.

What are California’s intestate laws?

When someone dies without a Will in California, assets owned by the decedent in his/her sole name (as opposed to assets held 1) by a Trust, 2) in accounts or policies that designate beneficiaries, and 3) jointly with someone else) pass to the decedent’s heirs-at-law, as defined in California Probate Code 6401 and 6402. 

What happens to the property of a married person after death when there is no Will, Trust, or Beneficiary in California?

Under these Probate Code provisions, if the decedent was married, his/her community property (broadly defined as any property owned jointly by a married couple) passes to the decedent’s spouse; and his/her separate property passes to a combination of his/her spouse and other relatives (e.g. children, parents, brothers/sisters, etc.).

What happens to the property of a single person after death when there is no Will in California?

If the decedent was not married, his/her assets pass to cascading list of relatives under Probate Code 6402 starting with his/her children (and their “issue”), then parents, then brothers/sisters, etc.

The headings listed below are used to give the reader a general idea of how assets will be transferred, and should not be relied on without speaking with a qualified estate planning attorney. We have referenced the actual text of the probate code below which is current as of February of 2019.

Who inherits property if there is no Will in California and the deceased is not married?

Except for assets that would not be a part of a probate estate (as defined below), if an unmarried decedent passes away without a Will, his/her assets will likely be distributed as follows:

The headings listed below are used to give the reader a general idea of how assets will be transferred, and should not be relied on without speaking with a qualified estate planning attorney. The actual text of the probate code

1. First to the Children of the Deceased (or their children’s children, or children’s children children*)

“(a)      To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

CA Probate Code 6402 (a)

  Definition of Issue: “Issue” of the decedent is all of his or her lineal descendants, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.

2. Second to the parents of the deceased

“(b)      If there is no surviving issue, to the decedent’s parent or parents equally.”

CA Probate Code 6402 (b)

3. Third to the children of the deceased parents (aka the decedent’s brothers and sisters)

“(c)      If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

CA Probate Code 6402 (c)

4. Fourth to the decedent’s grandparents:

“(d)      If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

CA Probate Code 6402 (d)

5. Fifth to the other children of the Grandparents (aka the decedent’s aunts and uncles):

“(e)      If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

CA Probate Code 6402 (e)

6. Sixth to the children of a predeceased spouse:

“(f)      If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.”

CA Probate Code 6402 (f)

7. Seventh to the decedents Next of Kin

“(g)      If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

CA Probate Code 6402 (g)

Will a Probate be Required on my Death in California?

If a decedent dies owning more than $166,250 of assets (excluding certain assets, as set forth below), someone (usually known as an “Executor” or “Administrator”) will be required to petition the Probate Court to:

• get a judge’s approval to collect the decedent’s assets;
• pay the decedent’s debts and taxes, and
• thereafter distribute all remaining assets to the decedent’s beneficiaries.

This will happen either according to the instructions the decedent set forth in his/her Will or as determined by California’s intestacy laws as provided above if the decedent died without a Will.

What Assets Are Not Included in Probate in California?

In calculating the $166,250 probate number referenced above, certain assets are excluded, including but not limited to:

1. Assets owned by a living trust;
2. Assets (e.g. 401(k)s, IRAs, life insurance policies, bank accounts with “payable on death” designations, etc.) that have beneficiaries properly designated;
3. Assets owned in “joint tenancy” with someone else; and
4. Mobile homes and automobiles.

What will happen to my home if I die without a Will or Trust?

If you own a home in California, you likely need a Trust.  The reason being, most (just about all) homes in California are worth more than $166,250, and if you’ve read this far, you know that probate may be required if you have more than $166,250 of assets in your name on your death.

If, however, you have a Trust, and your home is owned by your Trust on your death, your home would not be subject to the costly and time-consuming Probate process. 

In this event, the Trustee of your Trust would distribute your home (or the proceeds from the home if it is sold by your Trustee after your death) to the beneficiaries named in your Trust without involvement of the Probate Court.

Who will take care of my Children on my Death if I die without a Will or Trust?

Hopefully you and your children will be lucky enough to have a relative or friend willing and able to take care of your children on your death. 

Sadly, this is not always the case.  In the event such a relative or friend is willing and able to care for your children, a Probate Guardianship proceeding may be necessary.  In this case, such a person would file a Petition for Guardianship with the local Probate Court.

In the event more than one (1) individual is interested, willing and able to care for your children, your nomination of a Guardian for your children may carry weight with the Probate Court in determining which such individual is ultimately appointed. 

For this reason, it is common practice to nominate your choice for Guardian(s) of your Children in your Will.

Who to Contact if Someone you know dies without a will or trust in San Diego?

If you have any questions about how to avoid probate or how to set up an estate plan please feel free to reach out to attorney T. Owen Rassman. Attorney Rassman can help you with Estate Planning, assist in the probate process, or help a trustee administer an estate. The first consult is always free, so please call Rassman Law today (760) 933-8254.

Probate is a complex process. At the best of times it can be overwhelming. See below a Probate flowchart for a better understanding.

More often than not, the action items below should be undertaken by the Decedent’s Executor (if the Decedent died with a Will) and/or Heirs-at-Law (i.e. those persons who are entitled to inherit from the Decedent if he/she died without a Will – i.e. died intestate). Most importantly, if in doubt, or if there is conflict among any Executor, Trustee, Beneficiary or Heir-at-Law, be sure to contact an attorney to avoid the risk of becoming personally liable for actions you have taken or are about to take.

Immediately:

• Arrange for organ donation, after reviewing Decedent’s driver’s license, Advance Health Care Directive, Living Will and/or other documented wishes;
• Notify family members, close friends and Decedent’s attorney;
• Arrange care for minor family members and dependents;
• Arrange for pets;
• Arrange for funeral and memorial, after discussing the same with immediate family members and after reviewing Decedent’s Advance Health Care Directive, Living Will and/or other documented wishes;
• If the Decedent was a Veteran, visit the U.S. Department of Veteran’s Affairs website, and their Burial Benefits page;
• Contact extended family and friends to spread the word about the funeral;
• Arrange for a headstone;
• Prepare an obituary;
• Arrange for security at Decedent’s home and/or request policy to routinely check on Decedent’s home if left vacant; and
• Dispose of perishable food in Decedent’s home and water plants;

As Soon as You are Able:

• Contact the Decedent’s estate planning attorney, or if none, a Trust and Estates attorney;
• Locate and secure Decedent’s estate planning documents (if any);
• Locate and secure Decedent’s financial documents (e.g. bank statements, retirement statements, life insurance statements, veteran statements, credit card statements, health insurance statements, list of creditors and debts, etc.);
• Notify Social Security (usually this is done by the funeral director, but if not, visit the U.S. Social Security Administration’s website);
• Notify Medi-Cal if the Decedent was receiving Medi-Cal benefits (visit California Department of Health Care Services website);
• Notify utility companies if services need to be stopped;
• Notify health insurance company to cease coverage (do not, however, cease benefits for the Decedent’s dependents);
• Notify Decedent’s employer;
• Notify credit reporting agencies;
• Notify mortgage company on Decedent’s home, if any;
• Notify Decedent’s bank(s);
• Obtain original Certificates of Death (an attorney can advise as the number of originals needed), which will be needed in the up-coming estate and/or Trust Administration (usually the funeral director can assist with this);
• Re-direct mail to person named as Executor in Decedent’s Will (if any) or to one of Decedent’s Heirs-at-Law (i.e. those persons who are entitled to inherit from the Decedent if he/she died without a Will – i.e. died intestate)
• Make a list of those who attended the funeral and/or sent well-wishes and send thank-you cards;
• Make a list of Decedent’s debts and creditors (do not, however, pay any of Decedent’s debts without speaking with an attorney);
• Close Decedent’s credit card accounts; and
• Maintain records of all expenses incurred on behalf of Decedent (e.g. funeral and memorial expenses).

To Finish:

• If a probate is necessary, file a Petition for Probate;
• If Decedent died with a Trust, the Trustee must begin the Trust Administration;
• Lodge Decedent’s original Will (if any) with the Probate Court;
• File appropriate documents with the County Assessor (e.g. Preliminary Change of Ownership Report, Change of Ownership Statement, Parent-Child Exclusion, etc.) and/or Recorder (Affidavit Death of Trustee, Affidavit Death of Joint Tenant, Quitclaim Deed, etc.) with respect to Decedent’s home, if any;
• File Form 56 with the IRS and California Franchise Tax Board;
• Determine whether an Estate Tax Return is necessary;
• Determine whether income tax and/or trust tax returns need to be filed;
• Pay Decedent’s rightful creditors (not barred by statutes of limitations periods) and taxes;
• Distribute assets remaining to Decedent’s beneficiaries; and
• Get a release of liability from beneficiaries.